ICE device searches, the 100-mile zone and airport screening

In United States v. Martinez-Fuerte (1976), the Supreme Court held that stops for brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth Amendment and need not be authorized by warrant.

The limits the Court stated in the same opinion are under “Limits on them”.

In United States v. Martinez-Fuerte (1976), the Supreme Court held that the stops and questioning at issue may be made in the absence of any individualized suspicion at reasonably located checkpoints.

The limits the Court stated in the same opinion are under “Limits on them”.

In United States v. Brignoni-Ponce (1975), the Supreme Court held, because of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, that when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion; it said the stop and inquiry must be “reasonably related in scope to the justification for their initiation”, that the officer may question the driver and passengers about their citizenship and immigration status and may ask them to explain suspicious circumstances, but that any further detention or search must be based on consent or probable cause.

ICE’s directive, as the text of its scanned PDF reads, has a header block reading “DIRECTIVE NO.: 7-6.1 ISSUE DATE: August 18,2009 EFFECTIVE DATE: August 18,2009 REVIEW DATE: August 18,2012 SUPERSEDES: See Section 3 Below. DIRECTIVE TITLE: BORDER SEARCHES OF ELECTRONIC DEVICES”.

The PDF is a scan and the text is quoted as extracted, including its spacing. This page does not say whether or when the review date was acted on.

ICE’s 2009 directive says (section 1.1) that it applies to searches of electronic devices of all persons arriving in, departing from, or transiting through the United States, unless specified otherwise, and (section 1.2) that it applies to border search authority only and that nothing in it limits the authority of ICE Special Agents to act pursuant to other authorities such as a warrant, a search incident to arrest, or a routine inspection of an applicant for admission.

ICE’s 2009 directive says that ICE Special Agents acting under border search authority may search, detain, seize, retain, and share electronic devices, or information contained therein, with or without individualized suspicion, consistent with the guidelines and applicable laws set forth in the directive.

This is the 2009 text. The next item is the First Circuit’s description of a 2018 ICE Broadcast on advanced searches. This site has not fetched the Broadcast itself, and this page does not state ICE’s current rule.

In the First Circuit, in Alasaad v. Mayorkas (2021), the court wrote of ICE’s policy that it allows for suspicionless basic searches but states that as of May 11, 2018, ICE agents “should no longer perform advanced border searches of electronic devices without reasonable suspicion”, citing the ICE Broadcast.

This is the court’s description of the 2018 ICE Broadcast. This site has not fetched the Broadcast itself.

ICE’s 2009 directive says (section 8.1(3)) that at no point during a border search of electronic devices is it necessary to ask the traveler for consent to search.

ICE’s 2009 directive says (section 8.3(1)) that Special Agents are to complete the search of detained electronic devices, or copies of information therefrom, in a reasonable time given the facts and circumstances of the particular search; that searches are generally to be completed within 30 calendar days of the date of detention, unless circumstances exist that warrant more time, and that such circumstances must be documented in the appropriate ICE systems; and that any detention exceeding 30 calendar days must be approved by a Group Supervisor or equivalent, and approved again every 15 calendar days thereafter, and the specific justification for additional time documented in the appropriate ICE systems.

ICE’s 2009 directive says (section 8.5(1)(e)) that copies of information from electronic devices, or portions thereof, determined to be of no relevance to ICE will be destroyed in accordance with ICE policy governing the particular form of information; that such destruction must be accomplished by the responsible Special Agent within seven business days after conclusion of the border search unless circumstances require additional time, which must be approved by a supervisor and documented in appropriate ICE systems; and that all destructions must be accomplished no later than 21 calendar days after conclusion of the border search.

ICE’s 2009 directive says (section 8.6(1)) that all electronic devices crossing U.S. borders are subject to border search, that a claim of privilege or personal information does not prevent the search of a traveler’s information at the border, and that “the nature of certain types of information are subject to special handling by Special Agents, whether through policy or laws such as the Privacy Act and the Trade Secrets Act”.

ICE’s 2009 directive defines “Assistance” as the use of third party analytic resources such as language processing, decryption, and subject matter expertise, to assist ICE in viewing the information contained in electronic devices or in determining the meaning, context, or value of information contained therein.

A definition of a term in the directive. The quoted definition does not mention phones or passcodes, and this page does not say that ICE can decrypt a phone.

ICE’s 2009 directive says (section 8.6(2)(b)) that Special Agents may encounter information that appears to be legal in nature, or an individual may assert that certain information is protected by the attorney-client or attorney work product privilege; and that if Special Agents suspect that the content of such a document may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of ICE, the ICE Office of the Chief Counsel or the appropriate U.S. Attorney’s Office must be contacted before beginning or continuing a search of the document and this consultation shall be noted in appropriate ICE systems.

ICE’s 2009 directive says (section 3) that ICE Directive No. 7-6.0, entitled “Border Searches of Documents and Electronic Media”, is hereby superseded as it relates to electronic devices.

The text of 8 U.S.C. § 1357(a)(3) says that any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant, within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and, within a distance of twenty-five miles from any such external boundary, to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.

The boarding-and-searching clause is tied to “a reasonable distance”, and is about searching for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle; twenty-five miles is the figure in the private-lands clause. The quoted text does not mention phones, electronic devices or passcodes, and does not mention a search of a person.

8 C.F.R. § 287.1(a)(2) says that the term reasonable distance, as used in section 287(a)(3) of the Act, means within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the chief patrol agent for CBP, or the special agent in charge for ICE, or, so far as the power to board and search aircraft is concerned, any distance fixed pursuant to paragraph (b) of this section.

The regulation defines a term. The quoted text does not mention phones, electronic devices or passcodes.

TSA’s “What Can I Bring?” listing page says, in a note below its list of items: “Officers may ask you to power up your electronic device, including cell phones. Powerless devices will not be permitted onboard the aircraft. TSA does not read or copy information from your device.”

The page shows no “last updated” date; this site read it on 6 October 2026. The quoted sentences do not mention passcodes.

TSA’s Security Screening page says, under its heading about carry-on baggage screening in standard lanes, that travelers will be asked to remove personal electronic devices larger than a cell phone from the carry-on bag and place them into a bin with nothing placed on or under them for X-ray screening; it gives laptops, tablets, e-readers and handheld game consoles as common examples of these devices, and says this does not include items such as hair dryers, electric shavers or electric toothbrushes.

TSA’s “What Can I Bring?” listing page says that the final decision rests with the TSA officer on whether an item is allowed through the checkpoint.

The sentence is about whether an item is allowed through the checkpoint. This page does not read it as saying anything about a phone’s contents or a passcode.

49 U.S.C. § 44901(a) says that the Administrator of the Transportation Security Administration shall provide for the screening of all passengers and property, including United States mail, cargo, carry-on and checked baggage, and other articles, that will be carried aboard a passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation.

49 C.F.R. § 1540.107(a) says that no individual may enter a sterile area or board an aircraft without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area or aircraft under this subchapter.

The words are “person and accessible property”. They do not mention phones or the contents of a device, and this page does not say what “accessible property” includes.

49 C.F.R. § 1540.105(a)(1) says that no person may tamper or interfere with, compromise, modify, attempt to circumvent, or cause a person to tamper or interfere with, compromise, modify, or attempt to circumvent any security system, measure, or procedure implemented under this subchapter; paragraph (b) says that the provisions of paragraph (a) do not apply to conducting inspections or tests to determine compliance with “this part” or 49 U.S.C. Subtitle VII authorized by TSA, or by the airport operator, aircraft operator, or foreign air carrier when acting in accordance with the procedures described in a security program approved by TSA.

Quoted as worded. This page does not apply this provision to any particular act at a checkpoint.